Case In Point

British Columbia Supreme Court Awards $2 Million in Damages for Freedom of Association Violation

Case In Point

British Columbia Supreme Court Awards $2 Million in Damages for Freedom of Association Violation

Date: February 19, 2014

Last month, the British Columbia Supreme Court (“BCSC” or “Court”) released the latest in a series of cases dealing with collective bargaining and the right to freedom of association as guaranteed by section 2(d) of the Canadian Charter of Rights and Freedoms (“Charter“).

This 683-paragraph decision follows a previous decision of the BCSC dated April 13, 2011, wherein the Court found that legislation dealing with teachers’ collective bargaining rights (“Bill 28”) was unconstitutional and in violation of section 2(d) of the Charter. Bill 28 prohibited collective bargaining with respect to numerous topics including class size, class composition, and the number of classroom supports available to students with special needs. Bill 28 also deleted terms with respect to these topics from the teachers’ collective agreements. The Court found that Bill 28 violated section 2(d) of the Charter, but suspended its declaration of invalidity for a period of 12 months to give the B.C. government a year to enact new legislation or to otherwise address the Court’s concerns.

Following this 12-month period, the government enacted new legislation (“Bill 22”) which was nearly identical to Bill 28: it prohibited collective bargaining with respect to certain classroom working conditions, and struck down collective agreement terms dealing with these topics. The British Columbia Teachers’ Federation (“BCTF”) took issue with Bill 22, asserting that it violated section 2(d) of the Charter.

The B.C. government argued that, unlike Bill 28, Bill 22 was constitutional because the government engaged in good faith discussions with the BCTF prior to its enactment, and because certain of Bill 22’s provisions were time-limited (e.g. the prohibition on collective bargaining with respect to working conditions was scheduled to expire in June, 2013).

The Court disagreed. It found that the government’s discussions with the BCTF did not “cure” the constitutional defects found in Bill 28. The Court held that the discussions did not amount to good faith negotiations because the government’s strategy was “to put such pressure on the union that it would provoke a strike,” thereby giving the government the opportunity to gain political support for the imposition of Bill 22. The Court also held that the time-limited nature of Bill 22 did not provide any basis for distinguishing the two pieces of legislation. Both pieces of legislation were unconstitutional.

With respect to damages, the Court stated that an appropriate award must “[serve] the functions of compensation, vindication, and deterrence, but without being so large as to unduly take from the public purse and other public programs.” It awarded the BCTF a staggering $2 million in damages, plus costs, under section 24(1) of the Charter. The Court noted that $2 million equates to roughly $66 for each of the BCTF’s 30,000 members.

This case is important given the Court’s analysis of the relationship between collective bargaining and the right to freedom of association. The B.C. government has filed a Notice of Appeal to the British Columbia Court of Appeal, thereby indicating its intent to challenge the Court’s decision. Currently, the Supreme Court of Canada has granted leave to appeal in other freedom of association cases, which may provide further clarification on the issue: Saskatchewan Federation of Labour v. Saskatchewan, Mounted Police v. Attorney General of Canada and Meredith v. Attorney General of Canada (the two latter cases were argued before the Supreme Court this week).

Together, these cases demonstrate that Canadian courts are still grappling with the proper scope of freedom of association, and its connection to collective bargaining, following the Supreme Court’s rulings in B.C. Health Services and Fraser.